Company fined for blocking union access to the workplace

Posted on: 20 Sep, 2010 |
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The Federal Court has handed down a $9,000 fine to a Melbourne
glass company after it refused entry to two officials from the
CFMEU.

The Fair Work Act 2009 (Cth) (Act)
provides a framework within which union officials may exercise a
right of entry to premises occupied by employers. Under s502(1), a
person may not intentionally hinder or obstruct a permit holder who
is exercising his or her rights of entry in accordance with the
Act.

In this case, the union officials gave the company notice of
their intention to enter the premises the following day to hold
discussions with employees. When they arrived, they were met in the
car park by a senior manager from the company who sought
information from them about their authority to enter the site and
the purpose of their proposed visit. Despite the union officials
providing this information, they were refused entry into the
building and a room in which to interview employees. The senior
manager told the officials that any meeting was to take place in
the undercover car park area and if they wished to speak to a
particular employee, he would fetch that employee for them. After a
heated exchange, the senior manager asked the union officials to
leave the premises.

Justice Richard Tracey found that the company had contravened
s502(1). The Act places various restrictions on the union's right
of entry to minimise inconvenience to the employer. However,
Justice Tracey said where the right of entry is exercised in
accordance with the provisions of the Act, union officials are
entitled to unimpeded access to business premises for their
proposed purposes. Furthermore, he noted that employers are
required to 'respond positively' to any reasonable request that a
room be made available to the union.

The penalty imposed was undoubtedly significantly reduced by the
company's acknowledgement of liability. However Justice Tracey also
issued this warning to employers -

'It must be made clear to employers that they are not
entitled to deny access to their premises to union officials who
are exercising lawful rights of entry under the Act.'

Employers should
note:

The following conditions must be satisfied before a permit
holder is entitled to enter the premises:

A union official who holds a permit and who wishes to enter
premises must give the employer an entry notice of at least 24
hours before exercising a right of entry.

The entry notice must specify the premises to be entered, the
day of entry, and the name of the union of which the permit holder
is an official.

If the proposed entry is for the purpose of holding discussions
with employees, the notice must contain certain additional details
(s518(3)).

An employer is not entitled to hinder or obstruct the entry of a
permit holder if the above conditions are met. To do so is a
contravention of the Act. Employers should also note that it is a
contravention of the Act to refuse or unduly delay the entry of a
permit holder who is entitled to enter the premises.

Furthermore, the Act provides a union with standing to apply for
the imposition of a penalty if it is affected by the contravention
(s539(2)).

Employers should note that the maximum penalty which may be
imposed for contravening this section is $33,000 (where the
offender is a corporation).